Auser v. United States

United States District Court, D. Idaho

August 15, 2019

WILLIAM F. AUSER, Petitioner,v.UNITED STATES OF AMERICA, Respondent.

ORDER

B.
LYNN WINMILL U.S. DISTRICT COURT JUDGE.

INTRODUCTION

Pending
before the Court is Petitioner William F. Auser's Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. Civ. Dkt. 2. The motion is fully briefed
and at issue. Having reviewed the filings in this matter, the
Court will deny Petitioner's Motion without a hearing.

BACKGROUND

On
September 20, 2004 Petitioner Auser pled guilty to four
counts of armed bank robbery in violation of 18 U.S.C. §
2113(a) and (d) (Counts One, Three, Five, and Seven) and one
count of brandishing a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c)(1)
(Count Two). Crim. Dkts. 15, 20. Mr. Auser's convictions
for Counts One, Three, Five, and Seven, the bank robberies,
constituted the “crime[s] of violence” that
served as the basis for his conviction and sentence to Count
Two. See id.

In the
Plea Agreement, Mr. Auser agreed that the government could
prove the elements of Armed Bank Robbery as alleged in Count
One, Three, Five, and Seven, and the elements of Brandishing
of a Firearm During and in Relation to a Crime of Violence as
alleged in Count Two beyond a reasonable doubt. Crim. Dkts.
15, 20. The Plea Agreement detailed that armed bank robbery
was the “crime of violence” underlying for the
§ 924(c) charge as alleged in Count Two. Id.
The defendant did not object to the presentence report's
findings that armed bank robbery was a crime of violence for
purposes of 18 U.S.C. § 924(c). On November 29, 2004,
the Court imposed a judgement of 240 months, consisting of
156 months concurrent on each of Counts One, Three, Five, and
Seven and 84 months consecutive to those terms on Count Two.
Crim. Dkt. 20. Mr. Auser now moves to vacate his sentence for
Count Two under 28 U.S.C. § 2255. Civ. Dkt. 2.

Petitioner
challenges the constitutionality of his sentence based on the
Supreme Court's recent decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015) and Sessions v.
Dimaya, 138 S.Ct. 1208 (2018). In Johnson, the
Supreme Court invalidated a prisoner's sentence under the
Armed Career Criminal Act (“ACCA”) because the
definition of “violent felony” as a predicate
crime that “otherwise involves conduct that presents a
serious potential risk of physical injury to another”
was unconstitutionally vague. 135 S.Ct. at 2557; 18 U.S.C.
§ 924(e)(2)(b)(ii). The Court in Dimaya
invalidated a similarly-worded definition of “crime of
violence” in the Immigration and Nationality Act
(“INA”) because it likewise “devolv[ed]
into guesswork and intuition, invited arbitrary enforcement,
and failed to provide fair notice.” Dimaya,
138 S.Ct. at 1223; 18 U.S.C. § 16(b). Petitioner
believes his sentence for Count Two-brandishing a firearm
during a “crime of violence”-should be vacated
because the definition of the predicate “crime of
violence” in § 924(c) is unconstitutional
following Johnson and Dimaya. See Civ Dkt.
2; 18 U.S.C. § 924(c)(3)(B). For the reasons that follow
the Court will deny Petitioner's motion.

LEGAL
STANDARD

To
state a cognizable claim under 28 U.S.C. § 2255, a
petitioner must assert that he or she is in custody in
violation of the Constitution or laws of the United States,
that the district court lacked jurisdiction, that the
sentence exceeded the maximum allowed by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255(a). Under § 2255, “a district court
must grant a hearing to determine the validity of a petition
brought under that section, [u]nless the motions and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.” United States
v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). In
determining whether a § 2255 motion requires a hearing,
“[t]he standard essentially is whether the movant has
made specific factual allegations that, if true, state a
claim on which relief could be granted.” United
States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011).
A district court may dismiss a § 2255 motion based on a
facial review of the record “only if the allegations in
the motion, when viewed against the record, do not give rise
to a claim for relief or are palpably incredible or patently
frivolous.” Id. at 1062-63.

ANALYSIS

Petitioner
Auser argues the Court should vacate his conviction and
sentence for Count Two because bank robbery should not be
considered a predicate “crime of violence” for
purposes of § 924(c)(3). That is so, Petitioner
believes, because § 924(c)(3)(B) suffers from the same
unconstitutional vagueness identified by the Supreme Court in
the statutes at issue in Johnson and
Dimaya. See Civ. Dkts. 2, 8. The Government
responds that Petitioner's § 2255 claim is both
procedurally defective and without merit. See Civ.
Dkt. 6. The Court finds it unnecessary to address the
Government's procedural arguments or to reach the
question of whether § 924(c)(3)(B) is unconstitutionally
vague. Under controlling Ninth Circuit precedent,
Petitioner's Count One, Three, Five, and Seven
convictions for bank robbery under § 2113(a) count as
“crime of violence” predicate offenses for
purposes of his Count Two conviction under §
924(c)(3)(A). See United States v. Watson, 881 F.3d
782 (9th Cir.)(per curiam), cert. denied, 139 S.Ct. 203,
(2018). Therefore, the Court will deny Petitioner's
motion.

1.
Bank Robbery is a “Crime of Violence” Under 18
U.S.C § 924(c)(1)(A)

Count
Two of Petitioner's indictment, charged him with
brandishing a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c)(1).
The statute defines a “crime of violence” as a
felony that either:

(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...

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